29 Jan 2021
香港特別行政區 訴 陳文賢
- Citation
- [2021] HKCFI 108
- Court
- Court of First Instance
- Case number
- HCMA214/2019
[2021] HKCFI 108
Hong Kong Case Law
Mistake of law
11 Sept 2020
HKSAR v. LEUNG CHUNG HANG SIXTUS
- Citation
- [2020] HKCFI 2401
- Court
- Court of First Instance
- Case number
- HCMA303/2018
The court held that the 'likely to cause any person reasonably to fear' limb of s18(1) POO is to be assessed objectively and the presumption of mens rea is displaced for that limb; conflicting authority exists (HKSAR v Leung Tin Kei) so the question is certified to the Court of Final Appeal; the proposed mistake of law defence is not reasonably arguable and a certificate on that issue is refused because the accused's belief as to lawfulness is irrelevant and the concept of a 'lawful breach of the peace' is incoherent in law.
31 Jan 2019
HKSAR v. SHUM WAI KEE
- Citation
- [2019] HKCFA 2
- Court
- Court of Final Appeal
- Case number
- FACC19/2018
Section 37(a) requires that the defendant appreciate the falsity of the declaration; an honest and genuine belief that the declaration was not false (including a mistake of law about ROO disclosure) negatives the mens rea and precludes conviction; conviction must be quashed where courts materially misapprehended evidence of such belief.
16 May 2012
HKSAR v. WONG KWOK PONG, KEITH PAUL
- Citation
- HKSAR v. WONG KWOK PONG, KEITH PAUL
- Court
- Court of First Instance
- Case number
- HCMA160/2012
The Magistrate's sentencing decision fell within a permissible range: the offence was serious, the appellant pleaded guilty and received a one-third discount, antecedents and mitigation were considered but not exceptional, and because s16(1)(a) requires knowledge of ineligibility the appellant's plea was inconsistent with a defence of genuine mistake; therefore there was no basis to interfere with the two month custodial sentence.
22 Jul 2009
LAU LUEN HUNG THOMAS v. INSIDER DEALING TRIBUNAL AND ANOTHER
- Citation
- LAU LUEN HUNG THOMAS v. INSIDER DEALING TRIBUNAL AND ANOTHER
- Court
- Court of First Instance
- Case number
- HCMP1017/2008
Leave to appeal was refused because the circumstances were not rare or exceptional under the principles in HKSAR v Hung Chan Wa; the applicant's payment of a fine and potential civil remedy under a 6 year limitation period did not make the case exceptional, the 28 day appeal period applied, and the applicant's prior conscious decision not to appeal weighed against granting an extension of time.
26 Sept 2008
RE GOODWAY LTD
- Citation
- RE GOODWAY LTD
- Court
- Court of First Instance
- Case number
- HCCW162/1998
The court held that the consideration was paid under a mistake of law as to the assignability of most claims; applying Ex parte James the Official Receiver, as officer of the court, must act impartially and repay the mistaken consideration. The court sanctioned a refund of $349,900 to Yook Tong, ascribed token value $100 to the validly assigned claims, and ordered that the committee vacancy need not be filled; no order as to costs was made.
9 Dec 2004
AU HUNG LIT v. NGUY CAN & FILS (CHINA) CO LTD
- Citation
- AU HUNG LIT v. NGUY CAN & FILS (CHINA) CO LTD
- Court
- Court of First Instance
- Case number
- HCLA41/2004
Leave to appeal was refused because the Labour Tribunal plainly had jurisdiction (the claimant's contract fell within the Contracts for Employment Outside Hong Kong Ordinance) and the defendant failed to demonstrate a mistake of law or any factual impropriety sufficient to set aside the negotiated settlement; the intended appeal raised no arguable point of law or jurisdiction.
2 Jul 2004
C.Y. TSUN INVESTMENT CO LTD v. THE INCORPORATED OWNERS OF HOI TO COURT
- Citation
- C.Y. TSUN INVESTMENT CO LTD v. THE INCORPORATED OWNERS OF HOI TO COURT
- Court
- Court of First Instance
- Case number
- HCSA16/2003
Because the Defendant submitted its statement of defence (its first statement on the substance) before requesting referral to arbitration, Article 8(1) and section 6 were not complied with; the Small Claims Tribunal receives no special construction of Article 8(1); the tribunal therefore had no basis to stay the hearing in favour of arbitration and the consent order/adjournment was erroneous and must be set aside; alternatively, if the consent order embodied a contract it was vitiated by a fundamental common mistake of law.
22 Nov 2001
SO KWOK YAN & SO KWOK WAI trading as GLORIA KINDERGARTEN (NORFOLK EXTENSION) v. CHING HONG YUEN & OTHERS
- Citation
- SO KWOK YAN & SO KWOK WAI trading as GLORIA KINDERGARTEN (NORFOLK EXTENSION) v. CHING HONG YUEN & OTHERS
- Court
- Court of First Instance
- Case number
- HCSA25/2000
The appeal was dismissed because restitution for excess school fees charged in contravention of Regulation 61 is available to parents who paid in ignorance where the payee (the Kindergarten/Appellants) acted mala fide or bore primary responsibility for the illegality; the Adjudicator properly found the Appellants knew the charges were unlawful and misled parents so they were not in pari delicto, mistake of law supported restitution, and the change of position defence failed on the facts; procedural complaints did not raise sustainable points of law and did not vitiate the Tribunal's decision.
9 Nov 1995
BANK OF CREDIT AND COMMERCE HONG KONG LTD (IN LIQUIDATION) v. DAYAL N. HARJANI t/a N. VENSIMAL CO (HK)
- Citation
- BANK OF CREDIT AND COMMERCE HONG KONG LTD (IN LIQUIDATION) v. DAYAL N. HARJANI t/a N. VENSIMAL CO (HK)
- Court
- Court of First Instance
- Case number
- HCA4314/1994
The court allowed the appeal because the defendant's affidavit raised a bona fide triable issue — namely that the Nigerian correspondent bank may have surrendered the bill to the drawee thereby discharging the drawee and potentially extinguishing the plaintiff's right to recover from the defendant — and the defence was not so shadowy as to justify conditional leave requiring payment into court; accordingly unconditional leave to defend was granted.